The Case Against Google Books

How three East Bay librarians led the revolt against the company's
plans to archive all earthly knowledge.

Surely, Eric Schmidt, Sergey Brin, and Larry Page of Google didn't anticipate the opposition to Google Books that has arisen.

Google has empowered ordinary citizens beyond anything once thought
possible. Thanks to Google, you can view your home from space, track
flu outbreaks around the country, or figure out traffic congestion
along your commute route, all instantaneously and without spending a
single dime. And the company's motto, "Don't Be Evil," underscores an
undeniable civic-mindedness. Its nonprofit arm, Google.org, invests in green electricity
start-ups. Goats graze the company's lawns to reduce its carbon
footprint. And yet, despite the company's best efforts, there's just
something about Google that gives some people the heebie-jeebies.

There's its history of collaborating with repressive Chinese
authorities, of course. There's its habit of tracking what you search
for and storing the data for months, or photographing citizens walking
the streets and posting the pictures on its Street View site. Mostly,
however, there's its sheer size and power. Google is sitting on $19
billion in cash. Its business model is predicated upon ensuring that
you come to rely upon it for almost everything you do online. Google's
success has forever changed the media, among other industries. When
Gmail and Google Docs crash, as they have numerous times in the last
two years, businesses around the world grind to a halt. Critics of the
company worry that no single entity should have that much influence
over our lives.

Five years ago, Google began one of the most ambitious projects in
the history of human endeavor. Working with universities around the
world, including UC Berkeley, the company systematically scanned and
digitally archived millions of books. Today, it has come remarkably
close to preserving and organizing every single idea, fact, calumny,
sonnet, and law human beings have ever committed to print in English.
"Google Book Search was launched as part of our mission to take the
world's information, organize it, and make it universally accessible,"
says company spokeswoman Jennie Johnson. "Most of the world's
information is not online. It's offline, in books, on shelves. Google
Books began as a project to make books as discoverable as the world is
today."

It's a remarkable resource, one that could make the sum total of the
world's knowledge immediately available to the most isolated researcher
or the simply curious. And yet ...

Twelve months ago, three East Bay academics slowly began to grow
uncomfortable with what Google was doing. The more they looked into the
details of the Google Books project, the more they began to conclude
that the country could not afford to let Google control humanity's
knowledge the way it intended to. For their own individual reasons, in
their own distinctive ways, these critics — Peter Brantley,
Pamela Samuelson, and linguist Geoff Nunberg — set out to stop
the project, or at least fundamentally change the way it was being
carried out.

Last month, they watched as the Google Books project stalled in its
tracks. The Authors Guild and a group of publishers had sued Google for
copyright infringement, and the three parties had worked out a
settlement. As soon as a federal judge approved the settlement, the
project could proceed. But in September, the Justice Department issued
a key opinion arguing that elements of this settlement violated the
country's antitrust laws, seriously jeopardizing its chances of passing
muster in federal court. Google is now reworking its deal with authors
and publishers, and its grand scheme will now almost surely be
impossible without sweeping changes.

It's impossible to know just how much Brantley, Samuelson, and
Nunberg influenced the Justice Department's opinion. But these three
academics forged a powerful coalition out of the country's academics,
research libraries, consumer and privacy groups, as well as Google
rivals Microsoft and Amazon.com. Along
the way, they helped create a new skepticism toward Google's
once-pristine brand. And they sparked a national conversation about one
of our most interesting and central questions: what is a free society
obliged to do with its written words?

Google is, first and foremost, a search engine. And when founders
Larry Page and Sergey Brin and CEO Eric Schmidt set out to digitize the
contents of some of the English-speaking world's greatest libraries,
they apparently did so to increase the universe of knowledge their bots
could scan, chop into discrete, digestible snippets, and present to
their users, along with the usual targeted text ads. If along the way,
entire libraries were digitally preserved, that could only benefit the
world, right?

At least, that's what the company's library partners thought. In
2004, Google got permission from Stanford, Harvard, Oxford, the
University of Michigan, and the New York Public Library system to
archive their stacks. The University of California and other libraries
later joined the project, and today, Google has digitally preserved a
remarkable ten million tomes in its system.

The plan was simple: rather than display substantial sections of a
book, which would clearly violate copyright law, Google would only
display a paragraph or two, in direct response to a search query. The
company's lawyers had every reason to imagine that this was permissible
under the legal doctrine known as "fair use," which protects the
public's right to quote or excerpt copyrighted works in academic
papers, news reports, legislative or judicial proceedings, and parody.
But the Authors Guild disagreed. In 2005, the Guild and the Association
of American Publishers sued Google, arguing that merely scanning the
entire work constituted copyright infringement.

Google's leaders still feel indignant that this grand humanitarian
gesture has cost them so much. "We don't think we should be sued in the
first place," Eric Schmidt recently told search engine guru Danny
Sullivan. "I'm happy to be criticized. But the fact of the matter is,
we didn't sue them. They sued us."

But as the years passed, and the lawsuit traveled through the
meat-grinder of settlement negotiations, Google's mission began to
change. By the time the three parties finalized their deal, Google no
longer would merely display snippets of works. The company would now be
authorized to sell online access to scanned books in their entirety.
And libraries and universities could buy subscriptions to the entire
catalogue. Proceeds from the sale would be divided between Google and
the plaintiffs, and a "book rights registry" would be set up to hold
money on behalf of the copyright holders. Suddenly, Google was a crude
sort of bookseller.